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Indiana Court of Appeals highlights the critical importance of defining the scope of representation

7/8/26

By: Donald Patrick Eckler

One of the most effective risk-management tools available to lawyers is a clearly defined scope of representation. The recent decision of the Court of Appeals of Indiana in Dircks v. Delamater and Razumich & Delamater, P.C. shows that principle while also revealing the litigation risks that can arise when an attorney informally intervenes during an emergency. Although the court ultimately affirmed summary judgment for the defendant attorney, the dissent demonstrates that disputes regarding the existence, duration, and scope of an attorney-client relationship can create significant exposure when those issues are not clearly documented.

The case arose from an extraordinary set of circumstances. In March 2019, a DCS welfare investigation escalated into a lengthy standoff between Barry Dircks and law enforcement. Attorney Joseph Delamater became involved after being contacted through another attorney and helped broker a peaceful resolution. Through discussions with law enforcement and DCS, Delamater facilitated the surrender of the children and helped avoid what could have become a far more dangerous confrontation.

The following day, DCS initiated CHINS proceedings and scheduled a detention hearing. Delamater informed Dircks that he could not attend the hearing because of a prior commitment and advised him to appear and request a continuance. Delamater did not attend the hearing, the children remained detained, and subsequent events led to their temporary placement in foster care. After the CHINS proceedings were ultimately dismissed and the children returned home, Dircks brought a legal malpractice claim alleging that Delamater failed to adequately represent him.

The majority opinion focused principally on two elements of a legal malpractice claim: duty and causation. The court concluded that any attorney-client relationship that existed was limited to Delamater’s emergency intervention during the March 4 standoff. The court emphasized the absence of a written engagement agreement, payment of fees, formal retention, or other indicia of an ongoing representation. Equally important, the majority found that Delamater expressly informed Dircks that he would not appear at the detention hearing and that additional steps would be necessary before any future representation could occur.

The decision is noteworthy for its recognition that emergency legal assistance may be limited in both scope and duration. Attorneys frequently find themselves providing immediate guidance during crises, often before formal engagement procedures can be completed. The majority’s opinion provides reassurance that such limited interventions will not automatically be transformed into indefinite representations. Instead, courts will closely examine the parties’ communications and conduct to determine the actual scope of the engagement.

The dissent, however, offers an important cautionary lesson. Judge Kenworthy concluded that genuine issues of material fact existed regarding whether an implied attorney-client relationship continued beyond the emergency. The dissent pointed to Delamater’s voicemail advising Dircks to seek a continuance “so that I can appear with you,” as well as communications encouraging Dircks to schedule an appointment and complete paperwork. According to the dissent, a reasonable factfinder could conclude that these communications suggested an ongoing representation rather than the conclusion of a limited engagement.

The dissent also found triable issues regarding breach and causation. Notably, Judge Kenworthy observed that competing expert opinions existed on whether Delamater’s actions influenced DCS’s detention decisions and whether counsel’s presence at the detention hearing could have altered the outcome. From the dissent’s perspective, those factual disputes should have been decided by a jury rather than resolved on summary judgment.

Ultimately, the majority concluded that causation was lacking as a matter of law. The court found that DCS had already initiated the processes leading to detention before Delamater became involved and that the children’s continued placement resulted, in large part, from Dircks’ own violation of the trial court’s visitation instructions. Because the alleged damages flowed from circumstances independent of Delamater’s conduct, the malpractice claim could not survive.

For lawyers and professional liability professionals, the most significant takeaway from Dircks may be what the majority and dissent implicitly agree upon: the scope of representation matters. Had the contours of the engagement been documented with greater clarity at the outset, years of litigation over whether an attorney-client relationship continued beyond a single evening might have been avoided altogether. The case serves as a powerful reminder that when lawyers step into emergencies, they should clearly communicate, and where possible document, the precise scope, objectives, and duration of the representation. Doing so may prevent a crisis from becoming a malpractice claim long after the emergency has ended.

For more information, please contact Donald Patrick Eckler at patrick.eckler@fmglaw.com or your local FMG attorney.

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